SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 61-1-55 (Supp. 1995) and 12-60-1330 (Supp. 1996) on the application of Sokha Kuoch, d/b/a S&K Minimart, for a 7-day beer/wine (off-premises only) permit at 2707 Ashley Phosphate Road, North Charleston, Charleston County, South Carolina. After notice to the parties, a hearing was conducted on April 11, 1997. Based upon the evidence presented, the application is granted.

I make the following findings of fact, taking into consideration the burden on the parties to establish their respective cases by a preponderance of the evidence, and taking into account the credibility of the witnesses:

1. Petitioner, Sokha Kuoch, submitted an application for a 7-day beer/wine (off-premises only) permit with the Alcoholic Licensing Bureau of the Department of Revenue on July 19, 1996.
2. Petitioner contracted to purchase the proposed location from Angler's Mini-Mart, Inc., on July 10, 1996.
3. Petitioner seeks the off-premises beer and wine permit to continue the ability of the proposed location to market beer and wine.
4. Petitioner has never had any criminal convictions and is of good moral character.
5. Petitioner is a legal resident of the United States.
6. Petitioner has resided in and maintained his principal place of abode in South Carolina for more than thirty days before applying for a permit.
7. Petitioner has never held a permit to sell beer and wine or alcoholic liquors.
8. Petitioner is over twenty-one years of age.
9. Notice of application for the permit was published in The Post and Courier on May 11, 18, and 25, 1996.
10. The proposed location operates as the S&K Minimart, a grocery and convenience store located at 2707 Ashley Phosphate Road, at the corner of Ashley Phosphate and Stall Roads in North Charleston, South Carolina. The store markets gasoline, tobacco products, candy, hot dogs, ice, soft drinks, and other grocery and convenience-store items.
11. The New Covenant Church of God (hereinafter "the church") is located at 7363 Stall Road, North Charleston. The church property adjoins the rear of the proposed location. A chain link fence separates the church from the proposed location. The church is 198 feet from the proposed location.
12. The church protests the application on the grounds that the proposed location is unsuitable because of its proximity to the church; there are enough permitted locations around the proposed location already; and, the issuance of a permit would contribute to criminal activity already occurring in the area.
13. The church has been at its present location since January 1993. Another church had occupied the premises since 1972.
14. The proposed location is in a commercial area within a municipality.
15. Petitioner will personally manage the store
16. The proposed location was licensed to sell beer and wine under previous ownership for approximately 15 years.
17. Another convenience store and gas station, known as the Gate Station, is located across from the proposed location at the corner of Ashley Phosphate and Stall Roads. It sells beer and wine to go.
18. No playgrounds are located in the immediate vicinity of the proposed location.
19. Stall High School is located several blocks from the proposed location.
20. Petitioner has aided local police in prosecuting trespassers at the proposed location in order to discourage criminal activity.
21. To help deter any criminal activity, the proposed location will open at 6 a.m., and will close at 11 p.m., except on Friday and Saturday, when it will close at 12 a.m. Formerly, the location was open twenty-four hours daily.
22. Petitioner also plans to add more exterior lighting to help discourage criminal activity at the proposed location

Based upon the Findings of Fact, I conclude as a matter of law, the following:

1. The Administrative Law Judge is vested with the powers, duties and responsibilities of hearing officers of the former Alcoholic Beverage Control Commission and hearing officers pursuant to Chapter 23 of Title 1. S.C. Code Ann. § 61-1-55 (Supp. 1995).
2. S.C. Code Ann. § 61-9-320 (Supp. 1995) [and not § 61-3-440 (Supp. 1995), as asserted by protestors] provides the statutory requirements for the issuance of on-premises beer and wine permits. It provides in part that the location must be suitable.
3. As the trier of fact, the Administrative Law Judge is authorized to decide the fitness or suitability of the proposed business location for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
4. Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981), Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972), and Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
5. The determination of suitability of the proposed location is not necessarily a function solely of geography. It may involve an infinite variety of considerations related to the nature and operation of the proposed business and its impact on the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
6. Law enforcement has not opposed the issuance of a beer and wine permit for the location. Although there are allegations of criminal activity, the evidence clearly reveals that the Petitioner has taken an active role in discouraging such activity by actively prosecuting trespassers, adding lights, and restricting the store hours to prevent persons from loitering at the location all hours.
7. Only generalities, opinions, and conclusions, without factual support, were offered to support Protestants' contention that issuance of the license and permit would detrimentally affect the well-being of the community. Such unsupported allegations are an insufficient basis for denial. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).
8. The issuance of the permit would not have an adverse impact upon the surrounding community. The location has been permitted for over 15 years and has not been a public nuisance.
9. Petitioner meets all statutory requirements for the issuance of a 7-day beer/wine (off-premises only) permit.
10. The location is suitable for the issuance of a 7-day beer/wine (off-premises only) permit.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED, that the application of Sokha Kuoch for a 7-day beer/wine (off-premises only) permit for the S&K Minimart, 2707 Ashley Phosphate Road, North Charleston, South Carolina, is GRANTED. The Department shall issue an off-premises beer and wine permit upon the payment of the appropriate fees.

AND IT IS SO ORDERED.

___________________________

ALISON RENEE LEE

Administrative Law Judge

June 10, 1997

Columbia, South Carolina.